Holding the Parole Board to Account

6th September 2017

The National Audit Office

We live in tightened times, so it’s no surprise that Government spending is the subject of scrutiny. The body responsible for this is the National Audit Office (“NAO”). Their recommendations and reports are meant to help Government improve public services, although, predictably, the emphasis is on saving money.

The NAO’s view of the Parole Board

The NAO last reported on the work of the Parole Board on 23rd February 2017. Their review had focused on the backlog of outstanding Parole cases. Their concern was that this backlog “led to increased delays and costs.”.

The report noted that while 7,148 oral hearings had been held before panels of the Parole Board in the previous year, 34% of oral hearings had been deferred. The report also said that the Board were aiming to bring the backlog of unheard cases down from its January 2015 peak of 3,163 to 1,200 by December 2017.

The report suggested that one result of the backlog had been that older and more complex cases had become less likely to be heard. This is particularly unfortunate given the number of indeterminate sentence cases in the system. By September 2016, 3,200 of the 3,859 prisoners serving IPPs were eligible for Parole review.

The report revisited issues raised in the NAO’s previous report (2008) and the decision of the Supreme Court in Osborn & others v The Parole Board [2013] UKSC 61. Crucially, the report concerned itself with the impact of the backlog but not with the quality of the Board’s decision making.

Dealing with delay

The report pointed to 34% of oral hearings being deferred, more than half of these on the day of the hearing. The most common cause was that reports had not been prepared or had been inadequately prepared.

The remedy in cases where an oral hearing is unacceptably delayed is through a claim for compensation once the case has concluded. The report pointed out that since 2011 – 12 the Board had paid out £1.1 million in compensation. In 2015-2016 alone the Board paid out £554,000 in compensation. Damages under Article 5 of the European Convention may be payable in cases where “legitimate frustration and anxiety” have been demonstrated.

Since September 2016 the Board has been working at tackling the backlog and reducing the number of deferrals. In 2016 the Board recruited 104 new members, including 7 psychiatrists and 20 psychologists. It is to be hoped that this influx of new members will go some way to addressing the backlog within the system, but if you’ve experienced delay in having your case heard by the Parole Board we’d like to hear from you.

The quality of decision-making

The report deals with delay but doesn’t touch on the quality of decision making by the Board. This is an area of some significance, since in many cases, the decision of the Parole Board as to whether to release has become more important than the decision of the original sentencing Court. Sentences where “dangerousness” is in issue always rely on this after the event analysis of rehabilitation.

The Board is a statutory body. This limits its powers. For instance, it can’t comment directly on issues such as the appropriate security category, location within the closed estate or suitability for an offender behaviour programme.

A joint study by the Ministry of Justice and the Parole Board conducted in 2012 revealed the close link between the Board’s decision and the evidence of the professional witnesses. Around 90% of IPP prisoners who were released had a release recommendation from the professional witnesses. There was also a predictable link between prisoners who had completed courses and prisoners who secured release. All Board members who were interviewed considered that indeterminate sentence prisoners benefited greatly from spending time in open conditions.

There are obvious difficulties with this formulation. Most strikingly, it reduces the opportunity for release for prisoners who can’t access courses, whether through lack of resources within the system or because they maintain their innocence.

Parole Board decisions can be challenged in the Administrative Court through an application for leave to move for judicial review. Legal Aid is still available for such cases where release is in issue.

Judicial review is concerned with the quality of the Board’s decision making, rather than the outcome. It isn’t an appeal against the decision not to release, but it can force the Board to commence the process again and hold a fresh hearing.

While strict rules of evidence don’t apply to Parole reviews, the Administrative Court is still able to scrutinise the legitimacy of the evidence relied on and the procedural fairness of admitting it, R (Weszka) v Parole Board for England and Wales [2012] EWHC 827. This is particularly important since material going before the Board can often amount to little more than speculation or rumour about alleged criminal activity that has never been tested in Court.

Sometimes an application for Judicial Review can reduce the problems caused by the perceived link between completion of courses and risk reduction. In R (Baicys) v Maidstone Prison [2011] EWCA Crim 2833, the Court pointed to the error in the Board’s reasoning that a prisoner had not completed sufficient courses where the reality was that his risk was perceived as too low for him to undertake them. It also provides a means of checking whether the Board’s decision represents a realistic and lawful appraisal of the evidence.

If you have recently been refused release by the Parole Board we’d like to hear from you.